United States District Court, E.D. New York
OPINION AND ORDER
SANDRA J. FEUERSTEIN, District Judge.
On or about April 30, 2014, petitioner James Lo ("petitioner") commenced a proceeding in the Supreme Court of the State of New York, County of Suffolk ("the state court") against St. George's University ("SGU") pursuant to Article 78 of the New York Civil Practice Law and Rules ("the Article 78 proceeding") seeking, inter alia, to reverse his dismissal from SGU's School of Medicine, to have him reinstated into SGU's School of Medicine for the purpose of sitting for the United States Medical Licensing Examination ("USMLE"), to compel SGU to declare him eligible to sit for the USMLE, and to recover special damages for lost earnings he will sustain as a result of not obtaining a medical degree, including the salary he would have earned if he was conferred a medical degree. On June 6, 2014, St. George's University, Ltd. ("SGU Ltd." or "respondent") filed a notice of removal pursuant to 28 U.S.C. §§ 1441(b) and 1446, removing the Article 78 proceeding to this Court pursuant to this Court's diversity jurisdiction under 28 U.S.C. § 1332(a). Pending before the Court are: (1) petitioner's motion to remand this matter to the state court pursuant to 28 U.S.C. § 1447(c); (2) respondent's motion to dismiss the amended petition pursuant to Rules 12(b)(2), 12(b)(5) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of personal jurisdiction, insufficient service of process and failure to state a claim upon which relief can be granted, respectively; and (3) petitioner's cross motion for, inter alia, (a) an extension of time to respond to respondent's motion to dismiss and (b) jurisdictional discovery. For the reasons stated herein, petitioner's motion to remand is granted, respondent's motion to dismiss is denied with leave to renew in the state court and petitioner's cross motion is denied as moot.
A. Factual Allegations
Petitioner is a resident of the State of New Jersey. (Petition ["Pet."], ¶ 1).
SGU is an unincorporated association owned and operated by SGU Ltd., a foreign corporation incorporated, and with its principal place of business, on the island of Grenada in the West Indies. (Notice of Removal ["Rem."], ¶ 9).
Petitioner was accepted into SGU's School of Medicine in December 2003, (Pet., ¶ 5), as a member of the January 2004 entering class. (Pet, ¶ 6).
Petitioner "sat for and successfully passed the USMLE Step 1 Examination in January 2007[, ]" (Pet., ¶ 7; see also id., ¶ 39), and "successfully completed all of his didactic course work and clinical requirements by January 2009[, ]" (Pet., ¶ 8; see also id., ¶ 39). According to petitioner, since his academic performance met SGU's academic requirements for graduation, and he met his financial obligations, he only had to pass both parts of the USMLE Step 2 Examination, i.e., the Clinical Knowledge ("CK") Examination and the Clinical Skill Examination, in order to graduate from SGU's School of Medicine. (Pet., ¶¶ 8, 39).
Petitioner sat for the CK Examination in 2009, (Pet., ¶ 9), shortly after his mother had passed away, (Pet., ¶ 10), and missed passing it "by just a few points, " (id.). According to petitioner, when he applied for the USMLE Step 2 Examination in 2009, "he was issued a token, which verified his eligibility for the examination * * * [and] was instructed that the token would be valid for five years." (Pet., ¶ 15).
After receiving the results of the CK Examination, petitioner went to work managing his father's medical practice, which "proved healing for both [him] and his father, and for the time the rest of [his] life was essentially put on hold." (Pet., ¶¶ 12-13). In the Fall of 2013, approximately four (4) years after he first took the CK Examination, petitioner applied to retake the CK Examination. (Pet., ¶ 16). According to petitioner, he "was aware that the USMLE regulations [require that] USMLE Steps 1, 2 and 3 must be completed with [sic] seven years from the date of the test-takers first attempt at the USMLE Step 1[, ]" (Pet., ¶ 17), and, thus, he "planned to complete the USMLE Step 2 examination prior to January 18, 2014 and request special permission from the USMLE to take the Step 3 examination outside of the seven year time limitation." (Pet., ¶ 17).
Petitioner's application to retake the CK Examination was denied and the USMLE instructed him "to complete an Interactive Web Applications (IWA) form which verifies an applicants [sic] medical school credentials." (Pet., ¶ 18). According to petitioner, although he completed the necessary IWA form, the USMLE could not process it and instructed him to contact SGU. (Pet., ¶ 19).
Upon contacting the registrar's office at SGU, petitioner spoke with Patty Manetta, who instructed him to contact Leslie Marino ("Marino"), who worked in the Dean's Office on special situations. (Pet., ¶ 20). Petitioner received no response from Marino to either the four (4) emails he sent to her from December 12-20, 2013, (Pet., ¶¶ 21-23), or the "numerous voicemails" he left for her during December 2013. (Pet., ¶ 24).
On December 23, 2013, petitioner spoke "briefly" with Marino by telephone, "but she was unable to clarify [his] eligibility to sit for the USMLE Step 2 examination." (Pet., ¶ 25). Petitioner received no response from Marino to his three (3) subsequent emails to her. (Pet., ¶¶ 26-27). However, on December 31, 2013, petitioner spoke with Marino by telephone "to discuss his eligibility to sit for the USMLE Step 2 examination and she mentioned * * * that [he] had been dismissed from [SGU]." (Pet., ¶ 28). According to petitioner, when he told Marino that "[t]his was the first time [he] had been aware of a dismissal from [SGU] and had never been previously notified that he was dismissed[, ]" (id.), she advised him "that notification of student dismissal from [SGU] is sent to a student's school e-mail." (Id.) Petitioner denies receiving "any notification of dismissal from [SGU], nor any communication regarding any disciplinary action or warnings as to a dismissal from [SGU][, ]" (id.), and claims that he "had no [prior] knowledge that he was dismissed from [SGU]." (Id.)
Petitioner received no response to either his subsequent emails to Marino and Dr. Stephen Weitzman ("Dr. Weitzman"), a dean at SGU, on January 2 and 6, 2014, or a certified letter that he sent to Dr. Weitzman on January 23, 2014; nor did he receive "any further communication from [SGU] regarding his status as a student at ...